Summary: Proceedings under section 22 of Anti-Rape Act cannot be initiated through registration of FIR.

Summary: (a) Constitution of Pakistan: —-Art. 199 Writ jurisdiction—Custodial death and torture—Scope of judicial review—Petitioner alleged that her son Zeeshan Akhtar and nephew Shahbaz were taken into illegal custody by police officials and were later found dead and injured respectively—Respondents claimed both were involved in criminal cases and suffered injuries during attacks allegedly initiated by their own companions—Held, even if such a claim was the police version, the matter still fell within the definition of “custodial death” and “custodial torture” under the Torture and Custodial Death (Prevention and Punishment) Act, 2022—Court held that judicial scrutiny was warranted and the Federal Investigation Agency (FIA) was the exclusive agency competent to investigate such allegations under the Act—Petition was disposed of with direction to transfer police investigation files to the FIA for inquiry and report. Disposition: Petition disposed of with directions to FIA to investigate under supervision of National Commission for Human Rights. (b) Torture and Custodial Death (Prevention and Punishment) Act, 2022: —-Ss. 2(f), 2(h), 3, 4, 5, 6, 9 & 16 Custodial death and torture—Statutory interpretation and application—Scope—Act was promulgated in compliance with Pakistan’s obligations under the UN Convention Against Torture—Held, Act provided for comprehensive definitions including those of “custody”, “custodial death”, and “torture”, covering death or injury during police operations such as arrest or search—Explanation II to S.2(f) clarified that individuals are deemed to be in custody during arrest/search proceedings—Held, both detenues were injured or killed during such a process, thus placing them within the protective scope of the Act—Court clarified that the term “police encounter” was not defined under the Act but, based on ordinary meaning, includes such confrontations—Therefore, applicability of Act was established. Cited Statutes: Torture and Custodial Death (Prevention and Punishment) Act, 2022; Pakistan Penal Code (XLV of 1860), S. 302; Constitution of Pakistan, Art. 14. (c) Criminal Law: —-Police encounters—Alleged misuse and coverup—Respondents’ version that injuries were caused by crossfire from accomplices was deemed a matter for trial—Held, such defense plea could not override the petition’s prima facie allegations of illegal detention and torture—Court emphasized that investigative responsibility rests with the FIA, not with local police, where public officials are accused of torture or custodial death. Principle: Claims by law enforcement must not preempt statutory investigation mechanisms where custodial abuse is alleged. (d) Federal Investigation Agency Act, 1974: —-Read with Torture and Custodial Death (Prevention and Punishment) Act, 2022 Investigation authority—Jurisdiction—FIA held to have exclusive jurisdiction to investigate public officials accused under Act, 2022—Court held that FIA’s inaction on grounds of absence of complaint was unjustified—Suo motu powers of FIA recognized—Direction issued to Director FIA, Multan to initiate inquiry and complete investigation strictly in accordance with law. Disposition: Police case files ordered to be transmitted to FIA; Director FIA Multan directed to proceed without delay and under supervision of National Commission for Human Rights. (e) Statutory Construction: —-Interpretation—Later legislation with overriding effect—Court held that the Act of 2022, containing a “non obstante” clause and being later in time, overrides earlier statutes like the Anti-Rape (Investigation and Trial) Act, 2021 where overlapping provisions exist—Act, 2022 granted primacy in cases involving custodial death, rape, and torture by public officials. Principle: In case of conflict, a latter statute with an overriding clause prevails over prior laws with partial overriding scope.

Summary: (a) Penal Code (XLV of 1860), S. 376(iii) ----Rape of minor girl aged 10 years—Conviction based on confidence-inspiring testimony of victim—Victim, a 10-year-old school student, unequivocally identified the accused, a school sweeper, as the perpetrator of rape—Her statement was recorded after assessment of her competency under Art. 3 read with Art. 17 of QSO, 1984—Court found her narrative natural, consistent, and trustworthy—Held, sole testimony of victim in rape cases, especially of child sexual assault, is sufficient for conviction if credible—Victim’s version supported by medical evidence indicating recent vaginal trauma—Prosecution successfully proved case beyond doubt. (b) Anti-Rape (Investigation and Trial) Act, 2021, S. 18(1) & (2) ----Trial and confirmation of sentence—Appeal filed under S.18(1) of the Act, and death sentence reference submitted under S.18(2)—Held, trial court correctly applied law; sentence awarded was in line with statutory mandate under S. 376(iii), PPC for rape of a child under 12. (c) Criminal Procedure Code (V of 1898), Ss. 173, 342, 382-B ----Investigative and trial procedure—Appellant arrested on same day as FIR—DNA sampling done—Though DNA did not yield positive result, medical and ocular evidence was deemed sufficient—Appellant neither appeared under S. 340(2) nor produced defence evidence—Confession before police not relied upon—Trial Court awarded death and fine, with compensation under S. 17 of the Anti-Rape Act—Appellant was granted benefit under S. 382-B for time already served. (d) Qanun-e-Shahadat Order, 1984, Arts. 3, 17 ----Competency of child witness—Victim assessed for intelligence and ability to comprehend—Trial court rightly concluded she was competent to testify—Held, child’s testimony in sexual assault cases is admissible if it meets standards of coherence and credibility—No indication of tutoring found. (e) Delay in Lodging FIR—Effect in Rape Cases ----Two-day delay in reporting rape—Courts held delay immaterial due to social stigma, fear, and vulnerability, especially for victims from modest backgrounds—Cited Mehboob Ahmad v. The State (1999 SCMR 1102), Zahid v. The State (2020 SCMR 590), and Zahid v. The State (2022 SCMR 50)—Held, in rape cases involving child victims, delay cannot override substantive evidence where circumstances justify the delay. (f) Forensic and Medical Evidence—DNA and Potency Testing ----No semen detected in DNA analysis—Held, negative DNA not fatal where medical and ocular evidence clearly establish offence—Medical report showed abrasions on breasts and fresh vaginal injuries consistent with rape—Delay of two days in MLC explained absence of semen—Appellant found potent—Reliance placed on Abdul Ghani v. The State (2022 SCMR 544). (g) Rape Trials—Absence of Eyewitnesses—Effect ----Held, absence of eyewitness not material in rape offences committed in secrecy—Victim’s account can be sufficient—Court referred to Shakeel v. The State (PLD 2010 SC 47), Habib Ullah v. The State (2011 SCMR 1665) -------- Disposition: Capital Sentence Reference No.08-ARA-2022 is answered in affirmative and death sentence awarded to appellant is confirmed.

Summary: Conviction maintained ---- (a) Penal Code (XLV of 1860) – S. 376(iii) Rape – Minor victim – Ocular and medical evidence – Conviction – Child victim, aged four years, was found competent to testify after rationality test – Her testimony was consistent, confidence-inspiring, and corroborated by complainant and other eye-witness – Medical examination revealed swelling, ruptured hymen, and active bleeding – Held, slightest degree of penetration is sufficient to constitute rape under S. 376, PPC – Ejaculation or complete penetration is not required – Credible statement of victim, supported by medical evidence, sufficient to maintain conviction. Cited cases: Habibullah v. The State 2011 SCMR 1665; Shakeel v. The State PLD 2010 SC 47; Maqbool Hussain v. The State 2024 PCr.LJ 1841; Muhammad Yasin v. The State 2024 SCMR 128 (b) Criminal Procedure Code (V of 1898) – FIR – Delay in reporting Promptness – FIR registered within two hours and forty minutes of occurrence – Place of occurrence was at considerable distance from police station – Held, FIR was promptly lodged, negating possibility of consultation or fabrication – Identity of accused established beyond doubt – Conviction upheld. Cited cases: Istikhar alias Iftikhar v. The State 2024 PCr.LJ 1795; Muhammad Hanif v. The State 2023 SCMR 2016 (c) Qanun-e-Shahadat Order, 1984 – Arts. 3 & 17 Competency of child witness – Voir dire conducted by Trial Court – Victim found rational and competent – Her testimony was straightforward and identified the accused – Held, competent child witness can be sole basis of conviction if statement is trustworthy and corroborated – Conviction justified. Cited cases: Raja Khurram Ali Khan v. Tayyaba Bibi PLD 2020 SC 146; The State v. Muhammad Saleem 2025 LHC 1099 (d) Medical Jurisprudence – Nature of rape – Penetration Definition of rape – Held, under settled jurisprudence and amended S. 375, PPC, even slightest penetration is sufficient – No requirement of ejaculation or injury – Medical findings of swelling, hymen rupture, and bleeding consistent with penetrative abuse – Forensic opinion confirmed that rape is a legal conclusion, not a medical diagnosis. Cited references: Modi’s Textbook of Medical Jurisprudence (24th Ed.); Parikh’s Textbook of Medical Jurisprudence; Zahoor v. The State 1983 PCr.LJ 992; Kamran v. The State PLD 2022 Lahore 645; Madan Gopal Kakkad v. Naval Dubey AIR 1992 SC 204 (e) DNA evidence – Forensic support – Legal sufficiency Negative DNA report – Medical expert noted possible use of condom or non-ejaculation – Held, absence of DNA does not negate rape – DNA is corroborative, not conclusive – Where ocular and medical evidence is reliable, conviction can be maintained even without positive forensic match. Cited case: Atta ul Mustafa v. The State 2023 SCMR 1698; Abdul Ghani v. The State 2022 SCMR 544 (f) Juvenile offender – Capacity to commit offence Juvenility – Accused claimed to be incapable due to age – Medical opinion did not confirm incapacity – No legal presumption under Pakistani law that a person below a certain age cannot commit rape – Held, capability depends on mental maturity and facts – Conviction not barred by age alone. Cited cases: Satto v. State of Uttar Pradesh 1979 (2) SCC 628; Parikh’s Textbook of Medical Jurisprudence (8th Ed.) (g) Constitution of Pakistan – Arts. 4, 9, 14 & 25 – Anti-Rape (Trial and Investigation) Act, 2021 – S. 26 – Penal Code – S. 376-A Disclosure of victim’s identity – Violation of statutory and constitutional safeguards – Identity of minor victim disclosed in FIR, pleadings, and judgment – Held, such disclosure contravenes S. 26 of Anti-Rape Act and S. 376-A, PPC – Also infringes fundamental rights under Arts. 4, 9, 14 & 25 of the Constitution – Directions issued for compliance in all future matters. Cited cases: Muhammad Aamar v. The State 2022 LHC 8114; Nipun Saxena v. Union of India 2019 (2) SCC 703 Disposition: Appeal dismissed – Conviction and sentence of life imprisonment under S. 376(iii), PPC, maintained.

Summary: (a) Criminal Procedure Code (V of 1898): ---- S. 173 ---- Framing of charge ---- Trial commences only after framing of charge ---- Jurisdiction of Special Court under the Anti-Rape (Investigation & Trial) Act, 2021 ---- Petitioner's case was registered under S. 354 of the Pakistan Penal Code, 1860 (PPC), and the challan report was submitted to the Judicial Magistrate ---- The Magistrate, considering the offense as a scheduled offense under the Anti-Rape (Investigation & Trial) Act, 2021, referred the matter to the Sessions Judge, who subsequently assigned it to the Additional Sessions Judge ---- The Additional Sessions Judge, without framing charge, ruled that S. 354 PPC was not attracted and remanded the case back to the Area Magistrate for trial ---- Held, trial commences only after framing of charge, and any determination regarding the applicability of scheduled offenses must occur during trial as per S. 16(3) of the Anti-Rape (Investigation & Trial) Act, 2021 ---- Impugned order, having been passed before framing of charge, was held to be premature and beyond jurisdiction. (b) Anti-Rape (Investigation & Trial) Act, 2021: ---- S. 16(3) ---- Exclusive jurisdiction of Special Court to determine whether an offense falls within the schedule ---- Interpretation of "in the course of trial" ---- The Act empowers the Special Court to determine during the course of trial whether an offense is a scheduled offense or not ---- Trial, as settled in precedent, commences only upon framing of charge ---- Impugned order held to be in violation of S. 16(3) of the Act, as no charge had been framed before making such a determination ---- Case law relied upon: Haq Nawaz v. State (2000 SCMR 785) and Niaz Ahmed v. Aijaz Ahmed (PLD 2024 SC 1152) ---- Application of the legal maxim A communi observantia non est recedendum (when the law prescribes a particular procedure, it must be followed accordingly or not at all). (c) Administration of Justice: ---- Jurisdictional error ---- Special Court can only exercise powers prescribed under law ---- Decision rendered in absence of proper legal procedure is not sustainable ---- The Additional Sessions Judge, having disregarded the mandatory procedure under the Anti-Rape (Investigation & Trial) Act, 2021, acted beyond jurisdiction ---- The impugned order, therefore, was set aside and the matter remanded for fresh adjudication after framing of charge, ensuring compliance with procedural requirements. ----Disposition: Petition allowed. The impugned order dated 30.08.2023 was set aside, and the case was remanded to the Additional Sessions Judge, Chunian, for a fresh decision in accordance with law.